State of Minnesota, Appellant, vs. Perry Lynn Heck, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-475

 

 

State of Minnesota,

Appellant,

 

vs.

 

Perry Lynn Heck,

Respondent.

 

 

Filed October 12, 2004

Affirmed

Halbrooks, Judge

 

 

Renville County District Court

File No. KX-03-953

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

David Torgelson, Renville County Attorney, Glen M. Jacobsen, Assistant County Attorney, P.O. Box D, Olivia, MN 56277 (for appellant)

 

Mark D. Nyvold, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            The state appeals the district court's pretrial order denying its motion to amend its complaint, arguing that the court's denial has a critical impact on its ability to successfully prosecute the additional charges at a later time and that the pretrial order was erroneous.  The district court concluded that respondent's speedy-trial right would be unduly infringed if the state were allowed to amend the complaint.  We affirm.

FACTS

            On December 8, 2003, respondent Perry Lynn Heck was charged with two counts of criminal sexual conduct in the third degree, in violation of Minn. Stat. § 609.344, subds. 1(d) (incapacity), and 1(b) (age) (2002), for events allegedly occurring in his apartment during the weekend of July 25-27, 2003.  The complaint was filed four days after Investigator Doug Pomplun, the chief detective working on the case, and Laurie Rauenhorst, a Department of Human Services representative, interviewed the victim.  During that interview, the victim related the details of only one incident of sexual contact with Heck. 

On December 8, 2003, Heck made his first court appearance and a trial date of March 17, 2004 was established.  On January 2, 2004, Heck entered a plea of not guilty and made a demand for a speedy trial.  At that time, Heck's attorney stated that he would consent to the March 17 trial date, even though it was beyond 60 days, but he would not consent to "any other later [date]."  See Minn. R. Crim. P. 11.10 (providing that upon demand, trial shall be commenced within 60 days from the date of the demand unless good cause is shown why the defendant should not be brought to trial within that period).  The district court then denied Heck's request for a reduction in bail.  Heck remained in custody awaiting trial on this as well as other charges. 

On January 16, 2004, the prosecutor met with the victim and requested that she write out the events of the July 25-27 weekend and submit the written statement to Investigator Pomplun.  The prosecutor told the victim to contact the investigator as soon as her written statement was finished.  Approximately one week later, the state dropped the mental-incapacity count, effectively amending the complaint, after investigating and discovering that the victim had voluntarily used illegal drugs.  The case then proceeded on the remaining count. 

On February 25, 2004, the prosecutor again met with the victim, at which time she offered to give her written statement to him.  But in an effort to distance himself from the investigation process, he declined to take it.  Instead, the prosecutor told the victim to deliver the statement to Investigator Pomplun, which she did on March 3 or 4, 2004.  The written statement contained a much more detailed account of the sexual contact between the victim and Heck during the July 25-27 weekend. 

The state, therefore, conducted further investigation and, on March 12, 2004, filed an amended complaint, including ten additional counts.  Counts 1 and 2 involved the sale of a controlled substance to the victim and another minor during the weekend, in violation of Minn. Stat. § 152.022, subd. 1(5) (2002).  Counts 3 through 5 and 7 through 8 involved third-degree criminal sexual conduct during the weekend, in violation of Minn. Stat. § 609.344, subds. 1(b), (c) (2002).  Count 6 also involved third-degree criminal sexual conduct, in violation of Minn. Stat § 609.344, subd. 1(b), but the conduct allegedly occurred in Heck's vehicle sometime before November 30, 2003.  Counts 9 through 11 involved fourth-degree criminal sexual conduct during the weekend, in violation of Minn. Stat. § 609.345, subd. 1(b), (c) (2002). 

On March 15, 2004, the district court denied the state's motion to amend the complaint, concluding that Heck's speedy-trial right would be unduly infringed if the state were allowed to amend.  This decision was based on the fact that the original trial date was already beyond 60 days from Heck's speedy-trial demand, the state had unnecessarily delayed its investigation without an adequate explanation, and a continuance would be necessary if the court accepted the amended complaint.  This appeal follows. 

D E C I S I O N

The district court has broad discretion to grant or deny leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of that discretion.  State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995).  "Interpretation of the rules of criminal procedure is a question of law, which we review de novo."  State v. Whitley, 649 N.W.2d 180, 183 (Minn. App. 2002).

I.

            The state may appeal pretrial orders in felony cases pursuant to Minn. R. Crim. P. 28.04.  "To prevail, the state must clearly and unequivocally show both that the [district] court's order will have a critical impact on the state's ability to prosecute the defendant successfully and that the order constituted error."  State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995) (quotations omitted) (stating the correct standard for reviewing a pretrial order denying amendment of a complaint although specific to pretrial order suppressing evidence).  The state satisfies the critical-impact test when the district court's order is based on an interpretation of a rule that bars further prosecution of a defendant.  Whitley, 649 N.W.2d at 183. 

            We conclude that the critical-impact requirement is satisfied here based on a "single-behavioral-incident theory."  See State v. Baxter, __ N.W.2d. __, __, 2004 WL 2050800, at *2 (Minn. App. Sept. 14, 2004).  Minn. Stat. § 609.035, subd. 1 (2002), provides that where conduct constitutes more than one offense, a conviction for one offense bars prosecution for any of the others.  State v. Meland, 616 N.W.2d 757, 759 (Minn. App. 2000).  In determining whether section 609.035 bars prosecution for multiple offenses, a court must determine whether the charged offenses resulted from a single behavioral incident.  State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 524 (1966).  Offenses are found to be part of a single behavioral incident if they (1) arise from a continuous and uninterrupted course of conduct, (2) occur at substantially the same time and place, and (3) manifest an indivisible state of mind.  State v. Chidester, 380 N.W.2d 595, 597 (Minn. App. 1986), review denied (Minn. Mar. 21, 1986). 

Here, counts 1, 2, and 6 in the proposed amended complaint involve conduct that is separate from the criminal sexual conduct charged in the original complaint.  Counts 1 and 2 are separable because they involve the alleged sale of a controlled substance the night before the alleged criminal sexual conduct, and count 6 is separable because the alleged criminal sexual conduct did not occur during the July 25-27 weekend. 

But the remaining criminal-sexual-conduct offenses charged in the original and amended complaints arose from a single behavioral incident.  These incidents allegedly took place over a continuous period of time and in the same location, namely on July 26, 2003, in Heck's apartment.  Moreover, the nature of the alleged incidents evinces an indivisible intent of sexual gratification.  Because they are part of the same behavioral incident, the state will be barred from prosecuting the additional counts at a later time if Heck is convicted under the original complaint.  See Baxter, __ N.W.2d. at __, 2004 WL 2050800, at *2.  Because of this potential bar, we conclude that the denial of the state's motion has a critical impact on the outcome of the trial.  See id.

II.

In addition to showing "critical impact" on the ability to prosecute the defendant successfully, the state also must show that the pretrial order under review was erroneous.  Zanter, 535 N.W.2d at 630.  The district court is "relatively free" to permit the state to amend the complaint before trial.  State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990).  But the grant or denial of a continuance, which the state conceded would have been required here, is reviewed under a clear abuse-of-discretion standard.  State v. Mix, 646 N.W.2d 247, 250 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002). 

Here, the district court was concerned that Heck's right to a speedy trial would be unduly infringed by a continuance.  To determine whether a delay constitutes a deprivation of the right to a speedy trial, we apply a balancing test, considering (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant.  Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972); State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977).  Based on the Barker factors, we conclude that the district court's concern was justified and warranted its denial of the state's motion to amend and the continuance that would have been required. 

A.        Length of the delay.

The length of the delay is a triggering mechanism, in that "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance."  Id. at 530, 92 S. Ct. at 2192.  The Supreme Court has recognized that "because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case."  Id. at 530-31, 92 S. Ct. at 2192. 

In Minnesota, there is no absolute right to a trial within 60 days of a defendant's demand for a speedy trial.  See Minn. R. Crim. P. 11.10 (providing that trial shall be commenced within 60 days from the date of the demand unless good cause is shown why the defendant should not be brought to trial within that period).  Rather, courts have consistently used the Barker factors to determine whether there is "good cause" for a greater than 60-day delay in felony cases.  SeeState v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989) (recognizing that "delays beyond the 60-day limit simply raise the presumption that a violation has occurred and require the trial court to conduct a further inquiry to determine if there has been a violation of the defendant's right to speedy trial").  In speedy-trial cases, delay "is calculated from the point at which the sixth amendment right attaches: when a formal indictment or information is issued against a person or when a person is arrested and held to answer a criminal charge."  State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). 

Here, Heck was arrested in early December 2003.  On January 2, 2004, Heck entered a plea of not guilty and made a demand for a speedy trial.  At that time, Heck consented to the March 17 trial date, even though it was beyond 60 days, but stated that he would not consent to "any other later [date]."  Nonetheless, on March 12, 2004, just days before the trial was to begin, the state sought to amend the complaint by adding ten additional charges.  The state also advised the court that it would require a continuance in order to conduct further investigation.  Moreover, the state had filed four other criminal complaints against Heck and had indicated in at least two of those cases that it would also need continuances for further investigation.  We conclude that this delay is sufficient to trigger the consideration of the other Barker factors. 

B.        Reason for the delay.

In addressing the reason for the delay of trial, a reviewing court must consider whether the delay is attributable to the defendant or to the state.  State v. Sistrunk, 429 N.W.2d 280, 282 (Minn. App. 1988), review denied (Minn. Nov. 23, 1986).  In this case, the delay was caused by the state's receipt of additional information in March 2004 concerning the extent of the alleged crimes.  But the state admitted that it had probable cause to charge Heck with the controlled-substance crimes earlier, and with regard to the additional criminal-sexual-conduct charges, the district court found that the state had not demonstrated why it failed to obtain the additional information sooner.  Because this delay was caused by the state's actions, we conclude that this factor was properly weighed against the state.

C.        Defendant's assertion.

The third factor, Heck's assertion of the right to a speedy trial, "is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right."  Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93.  Also, consideration may be given to the strength of the demand, as it "is likely to reflect the seriousness and extent of the prejudice which . . . result[s]."  Friberg, 435 N.W.2d at 515. 

Here, the record indicates that Heck demanded a speedy trial at the omnibus hearing on January 2, 2004.  Heck specifically agreed to a trial date of March 17, 2004, but would not consent to a later date.  And he continued to assert his speedy-trial right during the proceedings following the state's motion to amend.  We conclude that this factor also weighs against the state.

D.        Prejudice.

The final factor is whether the defendant has been prejudiced by the delay.  Prejudice is assessed in light of several interests, such as preventing oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and limiting the possibility that the defense will be impaired.  Barker, 407 U.S. at 532, 92 S. Ct. at 2193.  In Barker, the Supreme Court noted that prejudice is obvious where witnesses die or disappear during the delay, or where witnesses are unable to accurately recall past events.  Id. 

Here, there is no evidence suggesting that Heck was prejudiced in any of these ways.  Pretrial incarceration by itself does not constitute a serious allegation of prejudice, State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990), and Heck was also in custody on the other criminal files.  See State v. Windish, 590 N.W.2d 311, 318 (Minn. 1999) (holding that the first two interests identified in Barker regarding prejudice did not apply where the defendant was already in custody for another offense).  Therefore, while this factor does not weigh in favor of Heck, we agree that the totality of the Barker factors weighs in favor of denying the state's motion to amend the complaint.  See Barker, 407 U.S. at 533, 92 S. Ct. at 2193 (holding that none of the Barker factors is "a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial"). 

III.

            Lastly, we find it necessary to discuss the various rule-based arguments made by the state.  The state first argues that pursuant to Minn. R. Crim. P. 3.04, subd. 2, it should have been allowed to freely amend the complaint before trial.  But rule 3.04 contemplates only the continuance of pretrial proceedings, not the continuance of a trial itself.  See Minn. R. Crim. P. 3.04 cmt. (stating that the rule permits the court to continue any pretrial proceedings).  Here, had the district court allowed the state to amend the complaint days before Heck's trial was set to begin, a de facto continuance of the trial would have resulted.  Therefore, we conclude that rule 3.04 did not compel the district court to accept the amended complaint. 

Next, the state contends that the district court's refusal to consider the amended complaint constituted an abdication of the court's duty to determine whether there was probable cause to believe that an offense had been committed.  See Minn. R. Crim. P. 2.01.  The state asserts that this impermissible conduct is an interference with the prosecutor's charging authority.  See State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996) (recognizing that "[u]nder established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor's charging authority"). 

But the district court retains broad discretion over how the case proceeds once it is filed, which includes the power to grant or deny the prosecutor's request to amend the complaint.  State v. Johnson, 514 N.W.2d 551, 556 (Minn. 1994).  In Baxter, __ N.W.2d at __, 2004 WL 2050800, at *3, this court concluded that "the district court's inherent authority to grant or deny a motion to amend a complaint does not interfere with the prosecutor's authority to charge because the prosecutor's authority to charge only lasts until the time of filing."  Therefore, because the district court acted within its inherent powers and did not interfere with the prosecutor's charging power, we find no violation of the separation-of-powers doctrine.  See id.

Finally, the state argues that the district court is not permitted to weigh Heck's right to a speedy trial against the state's right to pursue appropriate charges because Minn. R. Crim. P. 17.05 does not apply prior to trial.  While it is true that rule 17.05 applies only after trial has commenced, State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980), the district court did not rely on rule 17.05 in its analysis.  Rather, the court properly analyzed whether Heck's right to a speedy trial would be unduly infringed pursuant to the balancing test set forth in Barker.  We conclude that the district court's analysis was appropriate.      

            Affirmed.